Bianchini (Glenunga) Pty Ltd T/A Tony and Mark's Glenunga

[2020] FWCA 3913

[2020] FWCA 3913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Bianchini (Glenunga) Pty Ltd T/A Tony and Mark's Glenunga
(AG2020/2004)

BIANCHINI (GLENUNGA) PTY LTD ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER HAMPTON	ADELAIDE, 30 JULY 2020

Application for termination of the Bianchini (Glenunga) Pty Ltd Enterprise Agreement 2013.

[1] This decision concerns an application by Bianchini (Glenunga) Pty Ltd, trading as Tony and Mark's Glenunga (the applicant Employer) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Bianchini (Glenunga) Pty Ltd Enterprise Agreement 2013 (the Agreement). The consequence of this application is that the General Retail Industry Award 2010 (the Modern Award) would apply to the parties. The Agreement was approved by the Commission on 25 June 2014. 1 The Agreement commenced operation on 2 July 2014 and has a nominal expiry date of 2 July 2018.

[2] A hearing by telephone was conducted in this matter on 29 July 2020. At the conclusion of that hearing I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The application was accompanied by a statutory declaration of Mr Paul Capobianco, Director of the applicant Employer, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included contentions to the effect of the following:

•  No employee will see a reduction in their pay rate or conditions as a result of the termination. All current staff are paid above the applicable Modern Award rate;

•  Termination of the Agreement will allow for additional hours to be worked on weekends and increased earnings for the employees concerned;

•  Employees have been notified of the proposed changes and their views sought. No employee objected to the proposed change.

[5] Given the status of the Agreement, the applicant Employer is entitled to apply for its termination pursuant to s.225 of the FW Act.

[6] In the lead up to the hearing of this matter, directions were issued requiring the notice of listing issued by the Commission be provided to all staff covered by the Agreement. The notice of listing contained the details for any employee or employee representative to make a contribution about the application. Ms Pierro, who appeared, with permission with Mr Capobianco, confirmed all relevant staff had been provided the notice of listing. No employee or employee organisation provided a submission or participated in the telephone hearing. I am satisfied that all affected parties support, or at least do not oppose, the application.

[7] During the course of the telephone hearing, Ms Pierro, further elaborated on the current circumstances of the business, including its growth and diversification since the approval of the Agreement. The introduction of hospitality areas not contemplated by the Agreement and the opening of additional stores as part of the broader family group of businesses, each with separate directors, means staff are working between stores under separate instruments. Transferring to the commonality of one single instrument will be beneficial to the business and staff.

[8] Mr Capobianco gave an undertaking to the Commission during the course of the hearing that the applicant Employer will retain any more beneficial over-award base (loaded) rates of pay that currently apply, notwithstanding the termination of the Agreement. I have accepted that undertaking in making this decision.

[9] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Agreement and that it is appropriate in all of the circumstances, including having regard to the views of, and consequences for, the employer and the employees, to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 9 August 2020.

COMMISSIONER

 1   [2014] FWCA 4203.

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